Newsletter No. 98 – February 2017

In a decision of 1 February 2017, the French Administrative Supreme Court (Conseil d’Etat), rules for the first time on the content of the control to be operated by the Direccte when requested to deal with a request for approval of a unilateral employment safeguard scheme (PSE), more precisely with respect to the criteria of order for dismissal. The Conseil d’Etat considered “that in the absence of a collective bargaining agreement having determined the criteria of order for the dismissals, the company’s employment safeguard scheme could not give the criterion of “professional qualification” a fixed value and, as a consequence, neutralize it, without breaching the provisions of article L. 1233-5 of the labor code.” In this respect, the administration ought to refuse the approval of a unilateral document which would not refer to all the criteria referred to by the labor code (CE, 1 February 2017, No. 38-7886).

Since a case law reversal of 23 November 2016, an employer may now limit the redeployment searches according to the geographical restrictions set by the employee on the occasion of a refusal of a position offered to him, without risking to see its dismissal be deemed without a real and serious cause (Cass. soc., 23 November 2016, No. 14-26.398). As a new decision illustrates it, when an employee refuses a position due to its distance to his place of residence and his personal situation, the employer may legitimately presuppose that he will refuse a position abroad. This new decision enables the French Supreme Court to confirm its recent case law, but also to specify that the restrictions that the employer is allowed to take into account in its searches following the first refusal of a position by the employee do not necessarily have to the explicitly stated by the employee  (Cass. Soc., 8 February 2017, No. 15-22.964).

Pursuant to the provisions of article L. 1225-4 of the labor code, the employer is strictly not allowed to notify a dismissal during the maternity leave of an employee, at risk of the dismissal becoming null. For the first time, the High Court states in a formal legal ground of principle, “that it results from article L. 1225-4 of the labor code, then applicable, interpreted in the light of article 10 of the Directive 92/85 of 19 October 1992, that an employer is not allowed, not only to notify a dismissal, whatever its ground, during the protection period mentioned in this text, but also to take preparatory measures for such a decision”. Hence, this prohibition applies to any dismissal reason, including economic reasons (Cass. Soc., 1 February 2017, No. 15-26.250).

On the occasion of a decision delivered on 1 February 2017, the Cour de cassation punished the disciplinary dismissal based on the employee’s religious convictions by the nullity of said dismissal. It thus ruled that a RATP employee had committed no fault in proposing, in replacement of the terms of the requested oath, a different formulation than “I swear”, on the ground that his Christian religion forbade it. It justifies its decision specifying “that it results from article 23 of the law dated 15 July 1845 on the railways’ regulations that the oath of the monitoring agents operating within the companies subject to this provision may be taken according to the forms in use in their religion”. As a consequence, the dismissal, based on its lack of administration of oath before the court, is null for having been decided by reason of the employee’s religious convictions, and is deemed discriminatory.  (Cass. Soc., 1 February 2017, No. 16-10.459).

By this decision of 1 February 2017, the Cour de cassation decides to follow the position of the Conseil d’Etat regarding the protective status and recognizes that the employees appointed by labor unions to sit on professional joint committees created pursuant to a collective agreement benefit from the provisions relating to the protection against dismissal, which the union delegates benefit from. It results therefrom that “the legislator meant to grant to the employees members of the professional joint committees created by a collective agreement the protection provided for by article L. 2411-3 of the labor code to the union delegates in case of dismissal”. The High Court then adds that “these provisions that are of public order because of their object, apply, pursuant to the general principles of labor law, to all the professional joint committees created by a collective agreement, including those created by agreements predating the entry into force of the law dated 4 May 2004 (Cass. Soc., 1 February 2017, No. 15-24.310).

In this decision dated 8 February 2017, the Cour de cassation states again the jurisprudential definition of very serious misconduct. It considers that the latter is characterized by “the intention to harm the employer, which implies the will from the employee to cause him harm by his misconduct, and does not result from the sole committing of an action prejudicial to the company”. In this case, the Cour de cassation considered that the fact, for a branch manager, certified accountant, to denigrate the pricing policy of the company with customers, even if it is prejudicial to the company, does not necessarily constitute very serious misconduct, but is considered as serious misconduct (Cass. Soc., 8 February 2017, No. 15-21.064).

Since the social security financing law for 2004, the companies based in France without setting up an establishment, must fulfill their obligations of payment of the social contributions with a unique body, the foreign companies national center, directly or through an appointed representative.  In this respect, the Cour de cassation just specified that the agreement whereby the company appoints one of its employees to fulfill its obligations of payment of its social contributions is null and may not have any effect, regardless of the fact that the employee does not bear the final cost of this payment (Cass. Civ. 2^nd, 9 February 2017, No. 16-10.796).